Dimeo v. Griffin ( 1991 )

POSNER, Circuit Judge.

The Illinois Racing Board promulgated a rule that requires jockeys and other participants in horse races in Illinois to submit to random drug testing not founded on any suspicion of wrongdoing. A class action on behalf of these participants was brought against the Board, charging that the rule violated their Fourth Amendment right to be free from unreasonable searches. The district court granted a preliminary injunction. 721 F.Supp. 958 (N.D.Ill.1989). A panel of this court, by a divided vote, affirmed the district court, agreeing that the rule violated the Fourth Amendment. 924 F.2d 664 (7th Cir.1991). We granted rehearing en banc to enable the full court to consider the unclear, delicate, and important question of where the Fourth Amendment should be deemed to strike the balance between the interest of the state in using drug testing as a regulatory instrument and the interest of persons in preserving their physical privacy.

The operative word in the Fourth Amendment is “reasonable,” the legal standard therefore is reasonableness, and the decision whether a particular public program that invades interests protected by the amendment is nonetheless reasonable, and therefore lawful, requires a judgmental, forward-looking, balance-striking, probabilistic assessment, rather than, as the plaintiffs would have it, a conclusive demonstration of measurable harms certain to be inflicted if the program is struck down. New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720 (1985); Treasury Employees v. Von Raab, 489 U.S. 656, 674, 109 S.Ct. 1384, 1395, 103 L.Ed.2d 685 (1989); International Brotherhood of Teamsters v. Department of Transportation, 932 F.2d 1292, 1304-05 (9th Cir.1991); Willner v. Thornburgh, 928 F.2d 1185, 1187-88 (D.C.Cir.1991); Harmon v. Thornburgh, 878 F.2d 484, 487-88 (D.C.Cir.1989). The weaker the interest asserted, therefore, the less showing of countervailing harms the government must make. Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 633, 109 S.Ct. 1402, 1421, 103 L.Ed.2d 639 (1989); Willner v. Thornburgh, supra, 928 F.2d at 1188 (“decreasing levels of intrusiveness require decreasing levels of justification”), 1190; Taylor v. O’Grady, 888 F.2d 1189, 1199 (7th Cir.1989); Thomson v. Marsh, 884 F.2d 113, 115 (4th Cir.1989) (per curiam). And since the plaintiff’s interest— the privacy interest — cannot be quantified, neither need the regulatory interest be quantified. Although the appeal is from a preliminary injunction, the parties have asked us to decide the ultimate question, which is whether the drug-testing program violates the Fourth Amendment. Chicago Observer, Inc. v. City of Chicago, 929 F.2d 325, 329 (7th Cir.1991); Cronin v. U.S. Department of Agriculture, 919 F.2d 439, 445 (7th Cir.1990).

The facts that bear on the balance of the competing interests in this case, and therefore on the reasonableness of the challenged rule, are set forth in the panel majority opinion, and can be summarized briefly. Horse racing in Illinois, as everywhere else in the civilized world (as far as we know), is a heavily regulated activity, and this for three reasons. It is highly dangerous to jockeys and to their counterparts in harness racing, called drivers; it is a magnet for gambling; and it has an unsavory, or at least a shadowed, reputation, growing out of a long history of fixing, cheating, doping of horses, illegal gambling, and other corrupt practices. Phillips v. Graham, 86 Ill.2d 274, 286, 56 Ill. Dec. 355, 360, 427 N.E.2d 550, 555 (1981); Garifine v. Monmouth Park Jockey Club, 29 N.J. 47, 56-57, 148 A.2d 1, 5 (1959); U.S. Commission on the Review of the National Policy Toward Gambling, “Second Interim Report” 52, 54 (July 1976); cf. Marrone v. Washington Jockey Club, 227 U.S. 633, 33 S.Ct. 401, 57 L.Ed. 679 (1913). The second and third points are of course related. Gambling on horse races as on other sports and games has generally been illegal in this country, and illegal activities create and attract unsavory characters and methods: especially horse racing, because of the enormous sums bet on it. Illinois allows parimutuel betting (where the odds are determined automatically by the amount bet on each horse rather than set by bookmakers), but betting through bookmakers continues to flourish though illegal and the industry has never been able wholly to dispel an aura of scandal.

The Illinois Racing Board has a dual concern with the use of illegal drugs by participants in horse races. First is a concern with the personal safety of those participants, who might be injured or killed in accidents that would not have occurred but for such use. Second is a financial concern. Illinois derives tens of millions of dollars in tax revenues annually from parimutuel betting. Those revenues would fall if betting declined as a result of a belief by the public that the fairness of the races was being impaired because jockeys and other participants were using drugs. Pelling v. Illinois Racing Board, 214 Ill.App.3d 675, 158 Ill.Dec. 322, 325-26, 574 N.E.2d 116, 119-120 (1991).

Members of the Jockeys’ Guild first approached the Illinois Racing Board in 1984 with expressions of concern about drug use by participants in horse races. In 1985 the Board adopted a pilot drug test screening program for jockeys and harness drivers; 17 percent tested positive for cocaine, marijuana, or both. The validity of the test methodology is challenged but there is doubtless some drug use among horse-race participants, for the Jockeys’ Guild has instituted a drug counseling program for its members. In 1988 the Board, acting pursuant to a statute that gives it broad regulatory authority over horse racing in Illinois, adopted the rule challenged in this case. The plaintiffs do not argue that the enabling statute is invalid or that the rule is not authorized by it. Nor do they challenge the entire rule. They do not challenge the part that forbids horse-race participants to use on the grounds of any race track any illegal drug (technically, any “controlled substance” not lawfully prescribed by a physician). They challenge the method of enforcement — random drug testing, up to five times a year per participant. The individual is permitted to give his urine specimen in the (relative) privacy of a toilet stall, with a representative of the Board standing by but not actually watching the individual urinate.

The Fourth Amendment, as interpreted in the modern cases, protects privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Janik, 723 F.2d 537, 547-48 (7th Cir.1983). Urination is generally a private activity in our culture, though, for most men, not highly private. Men urinate side by side in public restrooms without embarrassment even though there is usually very little, and often no, attempt to partition the urinals. In hospitals and physicians’ offices, urine samples of both men and women are generally taken by female nurses or technicians under conditions of privacy similar to those prescribed by the racing board’s rule (there are female as well as male jockeys). The affront to the cluster of emotions that define the sense of privacy that is caused by the giving of a urine sample is not the same for everybody and of particular relevance here it is slight for people who for whatever reason are subject to frequent medical examinations. Boxers receive complete medical examinations before each match, which may be several times a year. Many Americans have an annual physical examination in which they provide a urine sample, expose their most private parts to inspections, and are poked, squeezed, and kneaded in these and other private places — all this with a minimum sense of embarrassment and certainly none of affront. Athletes (not limited to boxers), actors, and airline pilots are illustrative of the many types of worker whose job is of a character that requires the worker to submit to frequent medical examinations. As Hamlet said, “The hand of little employment hath the daintier sense.” The less habituated a person is to undergoing medical or other intrusions into his private realm, the more sensitive he is apt to be to such intrusions; the more habituated he is to them, the less sensitive he is apt to be. A further point, which distinguishes the person who has frequent medical examinations because of illness from the person who has frequent medical examinations because his job requires it, is that the latter voluntarily trades away some of his privacy for other goods. Cf. Willner v. Thornburgh, supra, 928 F.2d at 1190, 1193. Self-selection will tend to allocate jobs in which privacy is limited to persons who value privacy less.

The plaintiffs do not doubt that the Board could if it wanted require them to undergo a complete medical examination before each race, and such an examination would require the giving of a urine specimen. The only difference would be the supervising personnel. On balance the full examination would be substantially more intrusive than the test required by the challenged rule. Also more numerous, since jockeys race more than five times a year.

Like other losses, losses of privacy should be evaluated at the margin. The issue is the incremental loss of privacy caused by the Board's rule. International Brotherhood of Teamsters v. Department of Transportation, supra, 932 F.2d at 1300; see also Willner v. Thornburgh, supra, 928 F.2d at 1190-92. That increment is slight, and the burden on the state of establishing the need for the rule is correspondingly lightened. Certainly the state need not, as it might in other circumstances have to do, demonstrate a danger of mass disaster-the sort of danger that a drug-using airline pilot or missile silo commander might pose. It need not point to specific accidents caused by a drug-using jockey or some other horse-race participant. It need only demonstrate that the state interest in random drug testing is substantial, not that it is transcendent.

The state's interest here has, as we have said, two components. One is the personal safety of the participants, the other the financial interest of the state. With respect to the first, Judge Wood's panel majority opinion was eloquent on the dangers of racing (including harness racing) and on the potential for accidents that is posed by drug-using by any of the participants. The jockeys, the harness drivers, the assistant starters (who help the jockey control the horse in the starting stall), and the outriders (also called parade marshals: they ride the horses from the paddock to the track before the race) are personally in danger, as well as a danger to persons in the vicinity. The starter is in no danger himself, but if he starts the race before all the horses are facing forward in the starting stalls, poised to run, he can provoke an accident that might crush a jockey or an assistant starter. (A race horse weighs half a ton.) The persons at greatest risk are the jockeys and harness drivers; they are at risk from each other but also from the other participants, and that is why it is important that all the participants be careful and alert. Drug use impairs care and alertness, slows reflexes, impairs judgment.

The more dangerous an activity is, the more dangerous is drug use by participants in it. Horse racing is the most dangerous of the common sports, other than auto racing. An average of 2 jockeys are killed each year in this country, out of some 2,000 (the membership of the Jockeys' Guild, 1 Encyclopedia of Associations 2221 (25th ed., Deborah Burek ed. 1991)), and another 100 are injured seriously enough to be disabled for at least a week. The Jockeys' Guild has 40 permanently disabled members-one out of every 50. The annual death toll of 1 per 1,000 implies that a jockey who races for 10 years has a 1 percent chance of dying in a race. How much the use of illegal drugs contributes to this toll is unknown, but cannot be assumed to be trivial.

To the danger to personal safety must be added the danger to the state fisc. As we have said, the State of Illinois derives substantial revenues from horse racing, and does so in an era of financial stringency for state and local government. It can ill afford a drop in those revenues. Yet they would drop if parimutuel betting declined, and such betting might decline if the public suspected widespread use of drugs by horse-race participants. We do not want to place undue weight on this consideration. The primary losers from any decline in revenues from horse racing are the owners of the race tracks, who being private entities could require random drug-testing of the users of their facilities without coming within the scope of the Fourth Amendment at all, and yet they have not done so. Maybe they have not done so because the Illinois Racing Board has acted for them, but their failure to act is some evidence that the fiscal benefits of the challenged rule are smaller than the Board claims. Smaller, but surely not negligible, given the public suspicion of the honesty of racing and other sports; and they reinforce the concerns about the personal safety of the horse-race participants if drug use is not deterred with the aid of a vigorous program of random drug-testing.

The district judge was influenced by the fact that there have been no proven cases of lethal or other serious accidents caused by drug-using horse-race participants, or any other public scandals resulting from such use (as distinct from the doping of the horses themselves — an old problem in horse racing). But government is not limited to addressing public safety problems after serious accidents reveal its want of foresight. Menora v. Illinois High School Ass’n, 683 F.2d 1030, 1034 (7th Cir.1982). Dissenting in Von Raab, Justice Scalia pointed out that “neither frequency of [drug] use nor connection to harm is demonstrated,” 489 U.S. at 681, 109 S.Ct. at 1398, and the majority acknowledged that the “testing scheme was not implemented in response to any perceived drug problem among Customs employees” and “that the program actually has not led to the discovery of a significant number of drug users” — in fact, “no more than 5 employees out of 3,600 have tested positive for drugs.” Id. at 673, 109 S.Ct. at 1394. (That is a little more than one-tenth of 1 percent. Compare the 17 percent who tested positive in the Racing Board’s pilot test — albeit this may not be a reliable number.) Yet still the program was upheld.

When we compare the plausible dangers, both to safety and to revenue, that the challenged rule aims to combat with the very moderate incremental infringement of privacy that the rule brings about, we conclude that the rule is not unreasonable, and therefore that it does not violate the Fourth Amendment. In so concluding we join the only other federal court of appeals to have considered the legality of a drug-testing program for horse-race participants. Shoemaker v. Handel, 795 F.2d 1136, 1141-43 (3d Cir.1986). Horsemen’s Benevolent & Protective Ass’n, Inc. v. State Racing Comm’n, 403 Mass. 692, 532 N.E.2d 644 (1989), invalidated a drug-testing program for jockeys similar to the one challenged in this case, but the primary ground was the state constitution rather than the Fourth Amendment and the decision preceded the Supreme Court’s drug-testing cases, though so did Shoemaker. Serpas v. Schmidt, 827 F.2d 23 (7th Cir.1987), rejected Illinois’s claim to be allowed to conduct random searches of the living quarters of “backstretchers,” who take care of horses at race tracks but do not participate in the race. It was not a drug-testing case but an old-fashioned search case, and the persons to be tested were not actual race participants. So the intrusion on privacy was greater and the state interest weaker.

Random drug-testing has been adopted and challenged in a variety of other settings of course, and it is from the cases dealing with these other drug-testing programs that we have distilled the principles that have guided us in this opinion. Their factual differences from each other and from this case are too great for the other cases to control our decision, but a brief summary may help to demonstrate the conformity of our decision with the developing case law.

Almost all the cases fall into one of three categories: transportation workers, government employees, and sports participants. Random drug-testing of transportation workers is consistently upheld, whether they are railroad employees, truck drivers, airline pilots, or bus drivers. The leading case is Skinner v. Railway Labor Executives’ Ass’n, supra, but there is a host of others, including Bluestein v. Skinner, 908 F.2d 451 (9th Cir.1990), and Transport Workers’ Union v. Southeastern Pennsylvania Transportation Authority, 884 F.2d 709 (3d Cir.1989). The public safety interest in such testing is obvious.

The government employee cases are a mixed lot. Following the lead given by the Supreme Court in Treasury Employees v. Von Raab, supra, the courts uphold such testing where the government employee is armed and therefore potentially dangerous, where he has a security clearance and therefore poses a potential threat of compromising national security should he become addicted to drugs, where he works with dangerous materials, where he is involved in the enforcement of the drug laws themselves and might therefore be tempted into illegal activity involving drugs, or where, as in the case of prison guards, he is in direct contact with drug offenders. Illustrative cases are American Federation of Government Employees v. Skinner, 885 F.2d 884 (D.C.Cir.1989); National Federation of Federal Employees v. Cheney, 884 F.2d 603 (D.C.Cir.1989); Thomson v. Marsh, supra; and our own Taylor v. O’Grady, supra. The cases do not, however, permit random drug-testing of administrative and back office personnel, who though employed by the armed forces or other government agencies do not themselves pose any great threat to safety or other interests. Our decisions in Taylor and Serpas (the “backstretcher” case) are of this type. Analogous is Harmon v. Thornburgh, supra, which held that criminal prosecutors in the Justice Department, unless they hold security clearances or are involved in drug prosecutions, may not be subjected to random drug-testing.

Last are the sports cases. Two are the horse-racing cases that we have already discussed (Shoemaker and Horsemen’s Benevolent). Schaill v. Tippecanoe County School Corp., 864 F.2d 1309 (7th Cir.1988), upheld random drug testing of high school athletes, but we based the decision on the idea that the Fourth Amendment applies with diminished force in schools, an idea with no apparent relevance to the present case. O’Halloran v. University of Washington, 679 F.Supp. 997, 1005-07 (W.D.Wash.), rev’d on other grounds, 856 F.2d 1375 (9th Cir.1988), upheld random drug testing of athletes participating in intercollegiate competition, emphasizing the prevalence of drug abuse in competitive sports. See generally Note, “Drug Testing and the Student-Athlete: Meeting the Constitutional Challenge,” 76 Iowa L.Rev. 107 (1990).

The present case differs from the transportation cases in that those eases involve a danger to passengers and bystanders as well as to the transportation workers themselves. The present case is equally remote, however, from the government employee cases in which random drug-testing was struck down, because in those cases the employees in question were dangerous neither to themselves nor to third parties. The salient facts in the present case, which have no direct counterpart in any other cases except the other horse-racing cases, are that the incremental invasion of privacy is very slight; the physical danger of drug use — not only (or always) to the user himself, but also to other participants albeit not to the broader public — is acute; and there is in addition a substantial state financial interest (the parimutuel revenues), which is comparable with the interest in maintaining an efficient and productive work force, stressed in Willner v. Thornburgh, supra, 928 F.2d at 1192-93. In conjunction, these factors persuade us that the state interests outweigh the very limited privacy interest and therefore that the program is lawful.

Obviously this is a more difficult judgment with regard to the starters, assistant starters, and parade marshals than with regard to the jockeys and harness drivers. Not only are the jockeys and drivers in greater danger, but they are the athletes, whom the Racing Board could reasonably decide to make submit to physical examinations before each race. However, the other participants who are in no or little danger themselves — the starters and the outriders — can endanger other participants, while the assistant starters can endanger both themselves and the jockeys or drivers; and all these other participants can, if impaired or corrupted by a drug habit, ruin the fairness of the race. It is desirable, too, not to multiply legal distinctions indefinitely or engender internal frictions within the racing community by allowing random drug-testing of jockeys and drivers but not of the other participants in the race.

We conclude that the Racing Board’s program of random drug testing of participants in horse racing does not violate the Fourth Amendment. The judgment is therefore reversed and the case remanded with instructions to dismiss the suit.

Reversed and Remanded.